85S10668 KSD-D

By: Fallon H.B. No. 315

A BILL TO BE ENTITLED

AN ACT

relating to a prohibition against the knowing employment of persons not lawfully present in the United States and the suspension of licenses held by certain employers for the knowing employment of those persons; authorizing a fee.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle B, Title 2, Labor Code, is amended by adding Chapter 53 to read as follows:

CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED

STATES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Texas Workforce Commission.

(2) "Employee" means an individual who is employed by an employer for compensation. The term includes an individual employed on a part-time basis.

(3) "Employer" means a person, other than a governmental entity, who:

(A) employs one or more employees; or

(B) acts directly or indirectly in the interests of an employer in relation to an employee.

(4) "Employment" means any service, including service in interstate commerce, that is performed for wages or under a contract of hire, whether written or oral or express or implied. The term does not include any service performed by an individual for wages if it is shown that the individual is free from control or direction in the performance of the service, both under any contract of service and in fact.

(5) "E-verify program" has the meaning assigned by Section 673.001, Government Code.

(6) "Lawful resident verification information" means the documentation required by the United States Department of Homeland Security for completing the employment eligibility verification form commonly referred to as Form I-9. Documentation that satisfies the requirements of Form I-9 at the time of employment is lawful resident verification information.

(7) "License" means a license, certificate, registration, permit, or other authorization that:

(A) is issued by a licensing authority;

(B) is subject before expiration to renewal, suspension, revocation, forfeiture, or termination by a licensing authority; and

(C) is required for a person to practice or engage in a particular business, occupation, or profession.

(8) "Licensing authority" means a department, commission, board, office, or other agency of the state or a political subdivision of the state that issues or renews a license.

(9) "Person not lawfully present" means a person who, at the time of employment, is not:

(A) a citizen or national of the United States; or

(B) an alien who is lawfully admitted for permanent residence in the United States under the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.) or authorized to be employed by that Act or the United States attorney general.

Sec. 53.002. EMPLOYEE STATUS. An employer may not classify an individual performing services for the employer as an independent contractor instead of as an employee of the employer solely for the purpose of avoiding the requirements applicable to an employer under this chapter.

Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All licensing authorities are subject to this chapter.

Sec. 53.004. RULES. The commission shall adopt rules for the administration of this chapter.

SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON

NOT LAWFULLY PRESENT

Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An employer may not knowingly employ a person not lawfully present.

(b) An employer who violates Subsection (a) is subject to the suspension of each license held by the employer as provided by this chapter.

Sec. 53.052. EXCEPTIONS. (a) An employer has not violated Section 53.051(a) if:

(1) the employer, not more than l4 calendar days after the commencement of the employee's employment, requested from the employee and received and documented in the employee's employment record lawful resident verification information consistent with employer requirements under the federal Immigration Reform and Control Act of 1986 (Pub. L. No. 99-603); and

(2) the lawful resident verification information provided by the employee later was determined to be false.

(b) An employer has not violated Section 53.051(a) if the employer verified the employment authorization status of the person not more than 14 calendar days after the commencement of the employee's employment through the E-verify program.

SUBCHAPTER C. ADMINISTRATIVE PROVISIONS

Sec. 53.101. FILING COMPLAINT. (a) A person who has reason to believe that an employer has violated Section 53.051(a) may file a complaint with the commission in accordance with this subchapter.

(b) A complaint must:

(1) be in writing on a form prescribed by the commission; and

(2) be verified by the person making the complaint.

(c) A person may file a complaint under this section:

(1) in person at an office of the commission; or

(2) by mailing the complaint to an address designated by the commission.

Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner employed by the commission shall investigate the complaint in an attempt to:

(1) verify information regarding the immigration status of the relevant employee or employees of the employer alleged to have violated Section 53.051(a); and

(2) determine whether a hearing should be conducted.

(b) During the investigation, the employer alleged to have violated Section 53.051(a) shall specify all licenses held by the employer.

(c) If the examiner determines that there is no substantial evidence that the employer violated Section 53.051(a), the examiner shall issue a preliminary dismissal order dismissing the complaint.

(d) If the examiner determines that there is substantial evidence that the employer violated Section 53.051(a), the examiner shall refer the complaint to a hearing tribunal established under Section 53.103.

(e) The examiner shall mail notice of the preliminary dismissal order or referral order to each party at that party's last known address, as reflected by commission records.

Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNAL. The commission shall establish one or more impartial hearing tribunals to hear and decide complaints under this chapter.

Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL ORDER. (a) A party may request a hearing before a hearing tribunal to appeal a preliminary dismissal order made under Section 53.102(c).

(b) The request for the hearing must be made in writing not later than the 21st day after the date the examiner mails the notice of the preliminary dismissal order.

Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING NOT REQUESTED. If neither party requests a hearing to appeal a preliminary dismissal order made under Section 53.102(c) within the period prescribed by Section 53.104, the order becomes the final order of the commission for all purposes, and neither party is entitled to judicial review of the order under this subchapter.

Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice regarding a hearing conducted under this subchapter must be mailed by the hearing tribunal not later than the 21st day after the date the referral order or request for the hearing is received by the commission.

(b) As soon as practicable, but not sooner than the 10th day or later than the 45th day after the date a notice is mailed under Subsection (a), the tribunal shall conduct the hearing.

Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted under this subchapter is subject to the rules and hearings procedures used by the commission in the determination of a claim for unemployment compensation benefits.

(b) The hearing is not subject to Chapter 2001, Government Code.

Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if the hearing tribunal finds by clear and convincing evidence that the employer has violated Section 53.051(a), the hearing tribunal shall:

(1) for a first violation, enter a written order:

(A) requiring the employer to:

(i) terminate the employment of each employee who is a person not legally present; and

(ii) file with the hearing tribunal, within 30 business days after the date the order is entered, a sworn affidavit stating that the employer has terminated the employment of each of those employees; and

(B) notifying the employer that failure to file the affidavit required by Paragraph (A)(ii) will result in the suspension of the employer's licenses as provided by Subdivision (2); or

(2) for a second or subsequent violation, or on a finding that an employer has failed to file an affidavit required by Subdivision (1)(A)(ii), enter a written order suspending for a period of one year any license held by the employer.

(b) After a hearing, if the hearing tribunal does not find by clear and convincing evidence that the employer has violated Section 53.051(a), the hearing tribunal shall enter a written order dismissing the complaint.

Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to the hearing notice of the tribunal's decision. The notice shall be mailed to a party's last known address, as reflected by commission records.

(b) The order of the hearing tribunal becomes final on the 14th day after the date the order is mailed unless a further appeal to the commission is initiated as provided by this subchapter.

Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to itself or transfer to another hearing tribunal the proceedings on a complaint before a hearing tribunal.

(b) The commission promptly shall mail to the parties to the affected hearing notice of an order under Subsection (a).

(c) A quorum of the commission shall hear a proceeding removed to the commission under Subsection (a).

Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER. The commission may:

(1) on its own motion:

(A) affirm, modify, or set aside an order issued under Section 53.108 on the basis of the evidence previously submitted in the case; or

(B) direct the taking of additional evidence; or

(2) permit any of the parties affected by the order to initiate an appeal before the commission.

Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a) The commission shall mail to each party to an appeal under Section 53.111 notice of:

(1) the commission's decision; and

(2) the parties' right to judicial review of the order.

(b) The notice shall be mailed to a party's last known address, as reflected by commission records.

Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the commission becomes final on the 14th day after the date the order is mailed unless before that date:

(1) the commission by order reopens the appeal; or

(2) a party to the appeal files a written motion for rehearing.

Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted the party's administrative remedies under this chapter, other than a motion for rehearing, may bring a suit to appeal the order.

(b) The suit must be filed not later than the 30th day after the date the final order is mailed to the party.

(c) The commission and any other party to the proceeding before the commission must be made defendants in the suit.

(d) The suit must be brought in the county of residence of the party seeking judicial review. If the party is not a resident of this state, the suit must be brought in the county in this state in which the employer has its principal place of business.

(e) An appeal under this subchapter is by trial de novo with the substantial evidence rule being the standard of review in the manner as applied to an appeal from a final decision under Subtitle A, Title 4.

Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER SUSPENDING LICENSE. The commission shall promptly mail to the appropriate licensing authority a final order suspending a license entered under this chapter.

Sec. 53.116. OTHER NOTICE ON FINAL ORDER FINDING VIOLATION. (a) On the rendition of a final order under this chapter finding that an employer has knowingly employed a person not lawfully present, the commission shall notify the attorney general of that finding.

(b) On receipt of notice under Subsection (a), the attorney general shall promptly notify the United States Immigration and Customs Enforcement and appropriate local law enforcement agencies of the identity and address, if known, of each employee who is a person not lawfully present.

SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES

Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt from the commission of a final order suspending a license, a licensing authority shall immediately determine if the authority has issued a license to the person named on the order and, if a license has been issued:

(1) record the suspension of the license in the licensing authority's records;

(2) report the suspension as appropriate; and

(3) demand surrender of the suspended license if required by law for other cases in which a license is suspended.

(b) A licensing authority shall implement the terms of a final order suspending a license without additional review or hearing. The authority may provide notice as appropriate to the license holder or to others concerned with the license.

(c) A licensing authority may not modify, remand, reverse, vacate, or stay an order suspending a license issued under this chapter and may not review, vacate, or reconsider the terms of a final order suspending a license.

(d) A person who is the subject of a final order suspending a license is not entitled to a refund for any fee or deposit paid to the licensing authority.

(e) A person who continues to engage in the business, occupation, profession, or other licensed activity after the implementation of the order suspending a license by the licensing authority is liable for the same civil and criminal penalties provided for engaging in the licensed activity without a license or while a license is suspended that apply to any other license holder of that licensing authority.

(f) A licensing authority is exempt from liability to a license holder for any act authorized under this chapter performed by the authority.

(g) Except as provided by this chapter, an order suspending a license does not affect the power of a licensing authority to grant, deny, suspend, revoke, terminate, or renew a license.

(h) An order issued under this chapter to suspend a license of a person applies to each license issued by the licensing authority subject to the order for which the person is eligible. The licensing authority may not issue or renew any other license for the person during the suspension period.

Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing authority may charge a fee to a person who is the subject of an order suspending a license in an amount sufficient to recover the administrative costs incurred by the authority under this chapter.

SECTION 2. Chapter 53, Labor Code, as added by this Act, applies only to a violation that occurs on or after the effective date of this Act.

SECTION 3. This Act takes effect December 1, 2017.